State v. Bullard

16 N.H. 139 | Superior Court of New Hampshire | 1844

Woods, J.

There can be no doubt that the testimony of Cross narrating the conversation he had with the defendant was competent, it having relation to the money stolen from Kent, with the stealing of which he stood .accused at the time. His object was to charge Jewell with the offence, and thereby to shift the suspicion from himself; in doing which he gave a narrative of facts which clearly connected himself with what he averred he had no doubt was a part of the stolen money, and also gave such opinions as to the probable course of Jewell, as to the place of the concealment of the residue of the money, as led to its discovery.

The evidence then consists of the admissions of the defendant, which if material, and if they concerned the matter in issue or had any tendency to prove the issue, were clearly admissible. No rule of law is more familiar than that which ordinarily allows the admissions of a party to be given in evidence against him in such cases. Nor can there be any doubt that the admission of the facts stated in the course of the conversation were material, as they strongly tended to show the defendant having some connection with one of the bills alleged by him in his belief to have been one of the bills stolen from Kent, and also as tending to show him having some knowledge of the place of concealment, indicating further knowledge than he disclosed, and indicating even such knowledge as might well lead to the conclusion that he himself placed the money where it was found. It was testimony from which the inference might well be made, that the defendant had knowledge beyond what he disclosed touching the larceny, and such as might well attach to himself the commission of it.

The jury were at liberty to credit so much of the defendant’s story as they believed. They might reject the whole as false, or regard it in connection with his acts. They might for instance believe so much of it as showed him in possession of the ten dollar bill which he admitted he believed was stolen from Kent, and disbelieve so much as gave an account of the manner in which he obtained that possession. They might also regard the evidence furnished by the fact of his suggesting the probable place of concealment, Avithout regarding as true or sincere the reasons assigned by him for supposing the money to be concealed in the place where it was found. Such is the precise doctrine of Pearson v. Sabin, 10 N. H. 205. The court say in that case, “ It is clear that an admission offered in evidence must go entire to the jury, with all the declarations for and against the party making it; but although the whole is evidence, the jury are not bound to adhere to the admission in all its qualifications and conditions, or to give the same credit as to all the facts embraced in it.” The same principle is illustrated in another case lately before us. It was an indictment for selling liquor without license, in which the evidence of the sale was, that a party applied to the defendant for a glass of spirits, to which he answered that he did not sell such. The party then bought some walnuts and paid a sum of money, and the defendant thereupon said, that he could afford to treat, and delivered the prohibited article to the applicant. It was held by the court, that the jury might consider the application, the payment of money, and the subsequent delivery, as evidence of a sale, notwithstanding words used by the defendant contemporaneously with these acts, tending to show that the article was delivered as a gift. State v. Simons, Hillsborough. For although the acts and declarations were given in evidence together, the jury were authorized to judge of the credit to be given to the latter, and how far they were to be deemed an artifice to conceal an offence, and to divert attention from the evidence of guilt afforded by the acts of the defendant.

We have therefore no doubt that the evidence was properly admitted.

The written communication from the court to the jury, although transcending somewhat the limits usually observed in such papers so far as it assumed to state what evidence had been offered, was clearly justified by the consent of the prisoner’s counsel that the jury might ask instructions “ respecting the law or any evidence given in court.”

Another exception refers to the refreshments that were provided for the jurors, including some spirits that were ordered for the special use of one or more of their number, who alleged a state of bodily indisposition requiring such application. It does not distinctly appear, but may perhaps be fairly inferred, that the spirits were drank by the jurors for whose use they were ordered.

In Purington v. Humphreys, 16 Greenl. 379, where it appeared that such refreshments were furnished the jury who had retired and were somewhat fatigued and exhausted by their labors, the court refused to set aside the verdict on that account, although the practice was censured ; and it was said that upon evidence that the use of the stimulants had in any degree operated to disturb the judgment or inflame the passions of a juror, good ground would thereby be furnished for setting aside the verdict.

But other authorities maintain a different view of such a case, and it has been hold that the use of such stimulants in any amount, without Inquiring how much or to what effect, was a sufficient departure from the proprieties of the juror’s office, to require a verdict to be set aside. People v. Douglas, 4 Cow. 36. There had indeed been other acts of misconduct in the case, but wo think that the old law forbidding the use of refreshments at all to jurors deliberating upon a verdict, although relaxed materially from its early severity, has not yet so far yielded as to exempt them wholly from the control of the court in this particular. And we are of the opinion that the use of stimulating liquors by a jury deliberating upon a verdict in a criminal case, without first showing a case requiring such use, and procuring leave of court for that purpose, is a sufficient cause for setting aside a verdict found against the prisoner in such circumstances, whether the use was an intemperate one or otherwise.

For this cause the verdict must be set aside and a new trial granted. The motion in arrest of judgment need not therefore be considered.

New trial granted.